The respondent was the owner of a dog which was found with skin ulcerations, larval infestations and saturated in urine. On appeal, it was found that the trial judge failed to give proper weight to cumulative circumstantial evidence as to the respondent's awareness of the dog's condition. It was also found that 'illness' was intended to cover a wide field of unhealthy conditions and included the larval infestation. The respondent was convicted and fined.
1 MARTIN J. The respondent was charged with two offences against the provisions of s 13(1) of the Prevention of Cruelty to Animals Act 1985 ("the Act"). In each count the complaint alleged that the respondent was the owner of a black kelpie cross dog and that between about 7 December 1997 and 11 December 1997 at Hillbank she ill-treated the dog. The learned Special Magistrate dismissed both charges and the complainant, the Royal Society for the Prevention of Cruelty to Animals (SA) Inc., ("the RSPCA") appeals against both dismissals.
2 The relevant parts of s 13 are as follows:
"Ill treatment of animals
(1) A person who ill treats an animal shall be guilty of an offence.
Penalty: Ten thousand dollars or imprisonment for twelve months.
(2) Without limiting the generality of subsection (1), a person ill treats an animal if that person -
(a) deliberately or unreasonably causes the animal unnecessary pain; or
(b) being the owner of the animal -
(i) fails to provide it with appropriate, and adequate, food, water, shelter or exercise; or
(ii) fails to take reasonable steps to alleviate any pain suffered by the animal (whether by reason of age, illness or injury); or
(iii) abandons the animal; or
(iv) neglects the animal so as to cause it pain; "
3 The particulars of count one alleged that the respondent ill treated the dog in that she neglected it so as to cause pain, suffering or distress. The particulars of the neglect were that she:
"(a) failed to clean the dog and the area in which it was lying, causing it to suffer distress from urine saturation;
(b) failed to examine and provide care for the dog to prevent fly larval infestation causing pain, suffering or distress to the dog;
(c) failed to treat or arrange treatment for the dog to eradicate the fly larval infestation causing pain, suffering or distress to the dog;
(d) failed to seek veterinary advice and treatment for the dog causing pain, suffering or distress to the dog."
4 "Pain" is defined in s 3 of the Act as including "suffering and distress". The pain alleged to have been caused by the respondent's neglect was:
5 "(a) distress from urine saturation;
7 (b) suffering and distress from fly larval infestation".
8 The second count alleged ill treatment in that the respondent failed to take reasonable steps to alleviate any pain suffered by the dog by reason of age, illness or injury. The pain suffered was particularised as:
"(a) distress from urine saturation whilst lying down: and
(b) suffering and distress from fly larval infestation;"
9 It was said that the respondent failed to take reasonable steps to achieve such alleviation in that she:
"(a) failed to clean the dog and the area in which it was lying to alleviate the distress suffered by the dog from urine saturation;
(b) failed to treat, or arrange for treatment for, the dog to eradicate the fly larval infestation;
(c) failed to seek veterinary advice and treatment for the dog;
(d) failed to have the dog humanely destroyed."
10 The matter was heard by an experienced Magistrate who gave comprehensive reasons that demonstrate he carefully considered the evidence. Subject to one issue discussed later in these reasons, his Honour correctly directed himself as to the legal issues he was required to consider. The appellant did not suggest that his Honour made any errors of law, but complained of certain errors of fact and of failure to draw inferences as to the respondent's knowledge or awareness of the dog's condition.
11 On Thursday 11 December 1997, an inspector employed by the RSPCA called at the respondent's residence and found the dog on the floor of the laundry at the rear of the house. The respondent was not at home. The inspector noticed that the dog appeared to have difficulty in moving and that its hindquarters appeared to be both saturated with urine and infested with maggots. The officer took the dog to a veterinary surgeon. The Magistrate made the following findings as to the observations and opinions of the veterinary surgeon:
"...In the course of his examination he lifted up and parted the hair of the dog and saw numerous maggots or larvae of varying sizes and at differing stages of development. According to his observations they were on the entire back half of the dog but were mainly concentrated near the hind quarters. The worst affected areas were the back legs, especially in the region of the vulva and the anus. He also observed large areas of skin ulceration on the inner aspect of the upper part of each hind leg (see photographs 12 and 13 of Exhibit P1) and a smaller area on the right flank (see photographs 8 and 9 of Exhibit P1). In some places there were maggots in holes through the ulcerated skin (see photographs 8, 12 and 13 of Exhibit P1). In Dr McBryde's opinion, in some places, the skin ulceration was at least two days old at the time of his examination. In that general vicinity the dog's hair was moist and was easily plucked. As a result of his examination Dr McBryde formed the opinion that the dog was dehydrated, extremely toxic and in a state of shock."
12 After a careful consideration of the evidence concerning the larvae, his Honour found that the eggs from which the largest larvae had hatched were laid not less than three days before 11 December 1997.
13 Against that background the Magistrate addressed the question as to whether the prosecution had proved that between 7 and 11 December 1997 the dog experienced pain, including suffering or distress, by reason of age, illness or injury. His Honour referred to the evidence of the veterinary surgeon that the larvae infestation almost certainly caused skin ulceration which, in turn, caused the dog to experience pain. The witness estimated that the skin ulceration was at least two days old and that the dog would have experienced pain during that period. His Honour was satisfied that the ulceration constituted an injury to the dog and that, by reason of that injury, the dog suffered pain which lasted for at least two days prior to the examination conducted on 11 December 1997. His Honour was not prepared to find, however, that the pain commenced as early as 7 December 1997.
14 As to the first count, later in his reasons his Honour assumed for the purposes of the discussion that the failures alleged in the particulars to have constituted the neglect were established. He then addressed the question as to whether that neglect caused the dog the pain alleged, namely:
"(a) distress from urine saturation and
(b) suffering and distress from fly larval infestation".
15 His Honour appears to have concluded that the evidence fell short of proving those specific allegations beyond reasonable doubt. He observed that the veterinary surgeon did not say anything about the dog having been saturated with urine and that the witness did not suggest that the dog had experienced pain, suffering or distress from urine saturation. His Honour said that it was a reasonable possibility that the fly larval infestation, of itself, did not cause any pain, suffering or distress to the dog. Later in his reasons, however, his Honour appears to have accepted that the infestation did cause pain, suffering or distress for the purposes of the causative element because it was responsible for the development of the skin ulceration which caused the dog to experience pain. In this context, during submissions on the appeal counsel for the respondent conceded that the causative element had been proven.
16 His Honour then addressed the provision under which count two was charged:
"S 13(2)(b)(ii) of the Act imposed upon the defendant, as "owner" of Gypsy, the statutory duty to take reasonable steps to alleviate any pain suffered by the dog (whether by reason of age, illness or injury). Conversely, that paragraph may not impose on the defendant, as owner, any obligation to relieve the pain suffered by the dog for any reason other than age, illness or injury. Urine saturation of the dog, if it occurred, was not an illness, nor was it an injury although, depending on its duration, it may have caused, or contributed to, an injury to the dog. According to the evidence, fly larval infestation was not an illness, nor was it an injury, although, as Dr McBryde testified, it almost certainly caused, or contributed, an injury to the dog, namely, skin ulceration, which did cause the dog pain."
17 In my opinion, his Honour fell into error in finding that the fly larval infestation was not an "illness" for the purposes of s 13(2)(b)(ii) of the Act. In Royal Society Prevention of Cruelty to Animals (SA) v Evitts (1993) 169 LSJS 108, Cox J considered the meaning of "illness" in circumstances where a dog had been poisoned. The veterinary surgeon had given evidence that, "in medical parlance", a poisoning would not be described as an "illness". His Honour disposed of that proposition in the following passage (p 111):
"The matter of the word 'illness" can be disposed of quite briefly. The paragraph speaks of "any pain suffered by the animal (whether by reason of age, illness or injury)." As the learned Magistrate appreciated, it is a question what Parliament intended by its use of the word "illness", not what the veterinary surgeon or anyone else might understand it to mean. The evidence was that the dog was ill, or sick, and I think one could say correctly that the cause of the dog's distress was 'illness", one of the meanings of which is "bad or unhealthy condition of the body...; the condition of being ill...; disease, ailment, sickness" (SOED). (See also Macquarie Dictionary - "1. A state of bad health; sickness. 2. An attack of sickness." I see no reason to limit the word's meaning to the effects of a virus rather than a poison. If it matters the section speaks merely of "illness", not "an illness", but I do not think it does matter. It is pretty clear that the draftsman's purpose in adding the words in parentheses was to be comprehensive - to make it plain that the paragraph is referring to pain arising from any cause. Pain caused to a dog by snail poisoning is as much in need of alleviation as pain caused by anything else. There seems to be every good reason for giving the word "illness" a liberal rather than a restricted meaning. In my opinion, the learned Magistrate was in error in holding that there was no evidence that the pain suffered by this dog was suffered by reason of illness."
18 I respectfully agree with the views expressed by Cox J. In my opinion, in view of the extent of the fly larval infestation, that infestation was an illness for the purposes of s 13(2)(b)(ii).
19 As mentioned, notwithstanding his finding that the urine saturation and fly larval infestation were, in themselves, not injuries or illnesses and did not cause pain, suffering or distress, the Magistrate apparently considered the element of causation was made out because the fly larval infestation caused skin ulceration which was an injury that caused the dog pain. In that context, and dealing with count two, his Honour concluded that the respondent's only answer to the prosecution under s 13(2)(b)(ii) (apart from any possible argument along knowledge lines) was confined to the issue whether she failed to take reasonable steps to relieve the pain suffered by the dog by reason of its skin ulceration injury. Applying the same reasoning to count one which was based upon s 13(2)(b)(iv) alleging neglect of the dog so as to cause it pain, in respect of both charges his Honour said:
"If the defendant was not aware of the dog's injury and could not reasonably be expected to have foreseen it, she could not be convicted of an offence".
20 In considering the knowledge or awareness of the respondent, who was aged 70 years, his Honour considered the evidence of the respondent concerning the history of her ownership and care of the dog and of her observations at the relevant time of the dog's condition. In essence, it was the prosecution case that the condition of the dog was such that the respondent must have been aware of the infestation and ulceration. His Honour correctly observed that the prosecution was relying on circumstantial evidence and correctly directed himself in that respect. His Honour found as follows:
"The evidence reveals that the defendant had cared for Gypsy for many years. The dog was very old and comparatively inactive. To the defendant, Gypsy's behaviour appeared to be consistent with her age. Gypsy was not a house dog. She spent much of her time in the back garden. Her body was covered by reasonably long hair. It is at least a reasonable possibility that the eggs from which the largest larvae hatched were laid only three days before the afternoon of 11 December, 1997. The eggs from which the largest larvae hatched and the larvae themselves in their earlier stages of larval development would have been very small and more difficult to detect. It is also at least a reasonable possibility that the sites of the skin ulceration and the covering of hair may have made those areas of skin ulceration difficult to detect. The defendant was an elderly woman who wore spectacles. She said that she did not notice any unusual smell about Gypsy. She said that as a consequence of a car accident she had suffered an injury to her nose which may have affected her sense of smell.
I have to ask myself whether the accepted incriminating circumstantial facts, when taken together and viewed as a totality against the whole of the evidence, with the presumption of innocence in mind, remove beyond reasonable doubt, the possibility that between about 7 and 11 December, 1997 the defendant was not aware of the larval infestation on Gypsy, the existence of the injury consisting of skin ulceration or that the dog was experiencing pain by reason of that injury. While the circumstances were consistent with the defendant having been aware of those conditions, having regard to the whole of the evidence, including the defendant's evidence, I cannot exclude beyond reasonable doubt the possibility that she may not have been aware of them."
21 His Honour also considered the question as to whether the respondent could reasonably be expected to have foreseen the dog's injury, namely, the skin ulceration. He found as follows:
"The test is whether an ordinary reasonable person in the defendant's circumstances could reasonably be expected to have foreseen that injury. Having regard to my findings and to the whole of the evidence in relation to the defendant's circumstances at the relevant time, I think that it is at least a reasonable possibility that an ordinary reasonable person in the defendant's circumstances could not reasonably be expected to have foreseen that injury."
22 Both counsel accepted that his Honour posed the correct test in the passage quoted. During submissions concerning that objective question, there emerged considerable confusion in the submissions of counsel for the appellant as to the characteristics of the respondent that should be attributed to the ordinary person for these purposes. In view of the findings that follow, however, it is unnecessary for me to discuss that aspect further.
23 In considering whether the appellant has established a basis for interfering with his Honour's conclusions, in my opinion there are particular areas of the evidence that require special consideration. The significance of these matters is to be assessed against the background of his Honour's finding that the skin ulceration was at least two days old and that the dog would have experienced pain for at least two days prior to the examination on 11 December 1997. In addition, the evidence discloses that the dog must have been immobile when urinating in order for the dampness to exist that is required to make the dog an attractive host to egg-laying flies.
24 The first concerns the evidence of the odour attaching to the dog. According to the expert evidence called by the respondent, as part of their feeding process the larvae produce ammonia which has a characteristic odour. That odour becomes more noticeable as the larvae grow larger. The RSPCA inspector who arrived at the premises approximately two hours after the respondent had left said she smelt the dog from outside the open door at the rear of the premises and before she saw it. She described the smell as a "combination of urine and the smell that you get from rotten flesh". In referring to the evidence of the respondent that she did not notice any unusual smell about the dog, his Honour said:
"She said that as a consequence of a car accident she had suffered an injury to her nose which may have affected her sense of smell".
25 In my opinion, his Honour was unduly generous to the respondent and fell into error in this regard. When the respondent was asked whether she smelt anything about the dog before leaving the premises that day, she said:
"No. No I didn't. But I was involved in a car accident and through a drunken driver I was completely exonerated, but I had a broken nose. Whether that has affected my sense of smell or not, I don't know. I can still - they rebuilt - I didn't smell anything with Gypsy. I was dressed to go to this meeting and I was down on my hands and knees cradling Gypsy in my arms."
26 In my opinion, the evidence given by the respondent did not provide a reasonable answer to a significant piece of evidence led on behalf of the prosecution.
27 Secondly, as mentioned, the RSPCA inspector arrived shortly before 2.00 p.m. on 11 December 1997. When she moved to the rear of the premises she could hear a feeble woofing sound that she described as a "distressed noise". After smelling the dog from outside the door, she entered and observed that the dog was covered with a couple of sheets of newspaper. She described its general condition as "putrid" and said that its hindquarters were saturated with urine. Of particular significance she said that the dog was "covered in maggots". Asked where the maggots were, the inspector responded:
"Chiefly when I lifted up the top hind leg if you like, of the two which were lying on top of each other, and spread the dog's hind legs apart, the interior of that area between the hind legs was infested".
She said it was not difficult to see the maggots. Her evidence in this regard was supported by the evidence of the veterinary surgeon who said that the fly strike was "extremely obvious" and would have been evident to an owner who had examined the dog on a daily basis during the four days prior to his examination. As to the ulceration, he said a parting of the hairs would have shown something in the two days prior to his examination.
28 Finally, bearing in mind the observations of the inspector at about 2.00 p.m. on 11 December 1997, careful consideration must be given to the version of the respondent as to her observations earlier that day. In an interview conducted by the RSPCA inspector during the afternoon of 12 December 1997, approximately twenty-four hours after the RSPCA had taken possession of the dog, the respondent gave the following explanation:
"Right until, the time when you, was the time was the night before, which would be the tenth, Wednesday night, the tenth, I was up until four o'clock in the morning with her, trying to calm her (inaudible), but she was and we knew then and I 'phoned one of the family the next morning and said the time has come (inaudible) and I was with her all the morning, I just had a commitment then at this time, I didn't want to go, but I had a commitment which I promised to fulfil, I left her for two or three hours, I only left at 12 o'clock and when I left she was sleeping and I thought well with her being awake, I have been with her all morning and the time had come. I had said on the 'phone that morning to a family member, the time has come for Gypsy to go, so in actual fact, but I had no transport, my daughter-in-law had said, "when the time comes Mary, just 'phone me, but she was working so I had (inaudible) it was going to be that night, because I didn't want Gypsy to go through another night, so she had one night when I knew (inaudible). So in actual fact you came at 2, but she was going to go to the vet's (inaudible)."
The respondent said she got home at about 5.00 or 6.00 p.m., but had not earlier made any arrangements to take the dog to the veterinary surgeon. Later in the interview the respondent was asked why newspaper had been placed over the dog. She said:
"Yes, because I, in the morning when I was with her, she had weed which was so unlike Gypsy (inaudible) and there was flies, so I got the hose sort of washed round and I put newspapers over her because she was used to newspapers and I just patted her and you know there was one (1) or two (2) flies buzzing around and I didn't want that for Gypsy when she was wanting to go to sleep, didn't seem to bother her. It bothered me more than her."
The respondent told the inspector she did not see any maggots on the dog.
29 In her evidence before the Magistrate the respondent said she arrived home at about 11.00 p.m. on the evening of 10 December 1997. At about 4.00 am the following morning she heard "little distress signals" from the dog who was in the garden. She picked the dog up and carried her into the laundry. It was not quite light. She said she sat with the dog and stroked and cradled her. She gave the dog some milk to drink. Later she showered and dressed and then sat with the dog and cradled her. The dog was calm and appeared to be asleep. The respondent said she left the house at midday to keep a commitment which was an attendance at a meditation group to carry out some work she had previously undertaken to do. She was with the dog until she left and had cooled her down with sprinkler water. The respondent said she was torn between the commitment and the dog, but thought that she would take the dog to the vet that evening. She intended to ring her daughter-in-law to arrange transport to the vet.
30 According to her interview and evidence, therefore, the respondent had been with the dog almost constantly for approximately eight hours prior to leaving at midday. Although she said she was not wearing her glasses at 4.00 am, there is no suggestion that she did not subsequently put her glasses on. The Magistrate referred to the respondent as wearing glasses, but the respondent did not suggest that she experienced any difficulty with her eyesight while wearing the glasses.
31 I have made due allowance for the obvious advantage possessed by the Magistrate in seeing and hearing the respondent and other witnesses. The weight of the evidence is such, however, that I am driven to the conclusion that his Honour has failed to give proper weight to the cumulative effect of the evidence, particularly in connection with the events of the morning of 11 December 1997. The evidence concerning that period was overwhelming. With considerable hesitation, I am not prepared to interfere with the Magistrate's finding that it is a reasonable possibility that the respondent was unaware of the maggot infestation and skin ulceration. In my opinion, however, the total weight of the evidence led inevitably to the inescapable conclusion that during the morning of 11 December 1997, the respondent was aware that the dog was in very poor condition. In particular she was aware of the putrid odour and well knew that the dog was experiencing pain, suffering and distress. Notwithstanding that knowledge, she failed to examine the dog or to seek appropriate assistance. The most cursory examination of the dog would have revealed the maggots and the ulceration. The presence of maggots and ulceration on the dog would cause any ordinary and reasonable person considerable alarm and give cause for a close inspection.
32 As I have said, in arriving at these conclusions I have been conscious of the obvious advantage possessed by the Magistrate in seeing and hearing the various witnesses, including the respondent. In those circumstances the constraints within which the appeal court is to operate are well known: see Thorogood v Warren (1979) 20 SASR 156 at 159 and 160 and Devries v Australian National Railways Commission and Anor  HCA 41; (1993) 177 CLR 472 at 479. In this matter, I have reached the clear view that the proven facts compelled certain inferences and lead to the conclusion that his Honour failed to use his advantage.
33 The case for the prosecution included the period from 4 a.m. on 11 December 1997 until the RSPCA inspector took possession of the dog shortly before 2 p.m. that day. Counsel for the appellant has advised the Court that the appellant sought convictions based on that period. I am not prepared to interfere with the findings of the Magistrate in respect of the earlier period, but in my opinion his Honour has fallen into error in failing to assess properly the weight of the evidence with respect to the period 4 a.m. to 2 p.m. on 11 December 1997.
34 In view of the findings I have made concerning the respondent's knowledge of the condition of the dog, the odour and the fact that it was experiencing pain, suffering and distress, in my opinion the prosecution proved that the respondent neglected the dog during that period of 4 a.m. to 2 p.m. by failing to take the steps set out in particulars (c) and (d) of count 1. While the respondent failed to clean the dog as alleged in particular (a), there is no evidence to support the proposition that the failure caused the dog to suffer distress from urine saturation. Particular (b) is inapplicable as it alleges a failure to examine and provide care for the dog "to prevent fly larval infestation". That neglect particularised in (c) and (d) caused the dog pain, suffering and distress from approximately 4 a.m. to 2 p.m. on 11 December 1997. The elements of the first count were proven.
35 As to the second count, the evidence clearly established that the dog suffered pain by reason of illness. That pain was suffering and distress caused by fly larval infestation as particularised. Even on the most favourable view of the objective test from the respondent's point of view, given the knowledge of the respondent to which I have referred, it is clear that for the period 8 a.m. to 2 p.m. on 11 December 1997 the respondent failed to take reasonable steps to alleviate the pain suffered by failing to take the steps identified in the particulars (b), (c) and (d) of count 2. The elements of the second count were proven.
36 Having arrived at the conclusion that the prosecution had proven the necessary elements with respect to each count, I invited further submissions from the parties concerning the consequences. In view of the limited period of time from 4 a.m. to 2 p.m. on 11 December 1997 in respect of which I have found the elements of each count were proven, I perceived a difficulty in the appellant seeking convictions on both counts for that period. Issues such as the power to amend and to permit election by the appellant arose for consideration. Counsel for the respondent sought the opportunity to address submissions to the question of duplicity. Importantly in the context of a prosecution appeal, fairness to the respondent required careful consideration.
37 At the commencement of the hearing before the Magistrate, counsel for the respondent submitted that the prosecution should be required to elect and proceed on only one count. He suggested that a problem of duplicity would arise in proceeding on both counts. His Honour ruled that the prosecution should not be put to an election at that stage of the proceedings and that it was permissible for the prosecution to charge the two separate counts in the terms alleged. He indicated that on the basis of the information then available, he was not persuaded that the defence would suffer prejudice if the prosecution was not put to an election. His Honour reserved the question as to whether the defendant could lawfully be convicted on both charges.
38 In view of my findings as to the limited period of time over which any offending occurred, counsel for the appellant now concedes that it would be inappropriate to convict the respondent of both counts. Counsel was unwilling, however, to elect, but indicated that if he was required to do so he would elect to seek that the appeal be allowed only with respect to count 2.
39 If the circumstances now confronting this Court had arisen before the Magistrate, his Honour would have been required to consider the exercise of his powers of amendment pursuant to s181 of the Summary Procedure Act 1921. The appeal to this Court is governed by r96C of the Supreme Court Rules which provides that when an appeal pursuant to s42 of the Magistrates Court Act 1991 is heard by a single judge, r97 governs the appeal. Rule 97.18 provides that on the appeal the Court is to have all the powers and duties as to amendment that were possessed by the court from which the appeal has been instituted.
40 As to duplicity, the offending conduct in each count was alleged to have been a continuing offence occurring over a period of time. The particulars of each count alleged a number of distinct failures. However, only one offence was charged in each count. The difficulties that arose in R v Khouzame and Saliba  NSW CCA 173, a judgment delivered 2 July 1999, do not exist. In that case more than one act of sexual assault was encompassed in the one count. The judgment of Kirby J provides a very useful review of the relevant authorities with respect to duplicity.
41 Notwithstanding the absence of duplicity, as mentioned the prosecution now concede it would have been inappropriate for both charges to have been laid for the period 4 a.m. to 2 p.m. on 11 December 1997. While the elements of the offences are not precisely the same, in view of that short period the presentation of two charges which have so much in common in terms of their elements and particulars would have been unfair to the respondent (cf Pearce v The Queen  HCA 57; (1998) 72 ALJR 1416).
42 Counsel for the respondent submitted it would be unfair to permit the appellant to elect at this time and to allow the appeal with respect to one count. He submitted that the trial had been conducted on the basis that the first count of neglect was concerned with the failure to prevent pain, while count two was primarily directed at the failure to take reasonable steps to alleviate or cure the pain that had been brought about by that neglect. As a consequence of the way in which the prosecution had framed its case on both counts across a period of four days, the primary focus and the greater proportion of the evidence was directed to the days prior to 11 December 1997. Particular emphasis was given in evidence to how and when the fly larval infestation commenced and the subsequent course of development. If the prosecution had charged the second count only based on the limited number of hours for the morning of 11 December 1997, the entire focus of the case would have been different and the approach of the defence may have altered. Counsel pointed out, for example, that the respondent may have chosen to lead evidence concerning the availability of a veterinary surgeon and the difficulties of arranging for transport and treatment during that morning.
43 Initially counsel for the appellant suggested that the prosecution had not presented its case in the two categories mentioned in the respondent's submissions. He acknowledged, however, that count two could not have related to the earliest period covered by the charges because the pain suffered by the dog did not arise until after the fly larval infestation had taken hold and caused the ulceration. The prosecution was not required to elect during the trial as to when, within the four day period charged, the offending in count two commenced. Notwithstanding those circumstances, counsel contended that the course of the trial would not have been markedly different. He argued that the respondent had not been taken by surprise or prejudiced as a conviction had always been sought on the basis of the failures that occurred during the morning of 11 December 1997. In particular, counsel pointed out that the respondent was cross-examined at some length about the events of the morning of 11 December 1997.
44 Notwithstanding that it is in the context of prosecution appeals against dismissals that the issue of fairness is to be considered, in my opinion the appeal with respect to the dismissal of count two should be allowed. The case for the prosecution for the period 4 a.m. to 2 p.m. on 11 December 1997 was overwhelming. Although it would have been preferable if the prosecution had adopted the more appropriate course of limiting count one to the earlier period within the four days and specified count two as relating to the later period, including the morning of 11 December 1997, no unfairness resulted. The case against the respondent was clear and it was always apparent that the prosecution was seeking a conviction based upon the events over a period that included the morning of 11 December 1997. While the primary focus of the majority of the evidence may have been concerned with the commencement and development of the fly larval infestation, specific attention was given to the condition of the dog when found by the RSPCA inspector and the versions of the respondent concerning her involvement with the dog during that morning.
45 As to whether the course of the evidence would have changed markedly and whether it would now be unfair to allow the appeal on one count, it is relevant to note that the respondent claimed before the Magistrate that she was unaware of the dog's poor condition. The defence maintained that her lack of awareness was not unreasonable. On the basis of that lack of awareness, the defence claimed it was not unreasonable for the respondent to have decided to attend first to her commitment with a view to arranging transport to the vet that evening. The earlier availability of transport was, therefore, of little relevance, but the respondent gave evidence of the difficulty in arranging transport during the day. The issue of transport was a live issue that was not overlooked.
46 In my opinion no relevant unfairness will result if the appeal is allowed with respect to one count. The appeal with respect to count one is dismissed. The appeal with respect to count two is allowed.
47 I have given anxious consideration to whether a conviction should be recorded. Notwithstanding the age and antecedents of the respondent, in view of the respondent's blatant disregard of the dog's appalling condition, it would be inappropriate to refrain from recording a conviction. A conviction is recorded with respect to the offence charged in count two.
48 As to penalty, counsel for the appellant agreed that the offending is much less serious than it would have been if the respondent had been convicted of either offence over a longer period of time. Nevertheless, he submitted the respondent's serious disregard of the needs of the dog from 4 a.m. onwards was a serious breach of s13 of the Act. He did not take issue with the submission by counsel for the respondent that a bond or fine would meet the circumstances of the offending and the offender.
49 Counsel for the respondent emphasised that the gravamen of the offending was not arranging for the dog to be taken to the vet at 9 a.m. or soon thereafter. He said the respondent had loved the dog over many years and made a mistake. In view of those circumstances and the respondent's age and financial position, counsel urged that I impose a small fine or a bond.
50 The maximum fine is $10 000. The community is rightly concerned to ensure that animals are protected and that offenders are properly punished. The element of general deterrence is significant. In this matter there is no suggestion that the respondent is likely to reoffend.
51 In view of the limited period of time over which the offending occurred, and all the other circumstances including the respondent's age, and taking into account the attitude of the prosecution, I impose a fine of $350. In addition, pursuant to s53(1) of the Criminal Law (Sentencing) Act 1988, I direct that the respondent pay to the appellant the sum of $275 being the veterinary fees incurred by the appellant after the appellant took possession of the dog on 11 December 1997: see RSPCA v Streeter and Whitley, Judgment No. S6332 of 1997.
52 Following the dismissal of both charges, the Magistrate ordered that the appellant pay the respondent's costs fixed at $4 445. The appellant submitted that in view of its success on appeal it is entitled to the costs of both the trial and the appeal. Counsel for the respondent suggested that the appellant failed in respect of the greater majority of its case and was not, therefore, entitled to its costs other than in respect of a small proportion of the trial. He suggested the appropriate result is that each party bear their own costs.
53 On a trial of count two only, although the cause and development of the dog's condition would have been relevant, the evidence could have been presented in a much briefer and more confined manner. It is impossible to be precise as to the quantity of evidence that would not have been required if the trial had proceeded on count two alone. Bearing in mind the discretionary nature of the court's power with respect to costs, in these circumstances it is not appropriate to attempt to be precise. As to the appeal, it has been successful only on a limited basis.
54 In all the circumstances, in the exercise of my discretion I direct that each party bear their own costs of the trial.